Several white supremacist groups operate in the United States, encompassing white nationalists, white separatists, neo-Nazis and so-called “Christian identity” groups. Members of these groups have tested the limits of the First Amendment through hate speech and threatening demonstrations. Concerns have risen as these groups have used social media to spread their ideas.
The Southern Poverty Law Center in 2021 listed 50 “white nationalist” groups and the states where they operate, but noted several others, including Ku Klux Klan, neo-Confederate, neo-Nazi, racist skinhead and Christian Identity groups could also be fairly described as “white nationalist.”
“White nationalist groups espouse white supremacist or white separatist ideologies, often focusing on the alleged inferiority of nonwhites,” said the Alabama-based nonprofit that specializes in civil rights litigation.
White supremacist activity has tested First Amendment limits
The activity of white supremacist groups has led to Supreme Court rulings that have further refined the type of speech that the First Amendment protects and what it doesn’t.
In a 1969 landmark case, Brandenburg v. Ohio, the Supreme Court ruled that attempts to restrict the hateful speech of Ku Klux Klan leader Clarence Brandenburg on the basis of content and subject matter violated the First Amendment.
In Brandenburg, the speech at issue was vehemently racist and anti-Semitic. Nonetheless, the Court held that speech cannot be banned solely because of its content; it could only be limited in cases where it presented the threat of imminent lawless action.
Court: Peaceful display of swastika could not be considered a crime
In 1978, the Illinois Supreme Court upheld the right of a Nazi group to march in Skokie, Illinois.
The case emerged when the Nationalist Socialist Party, an offshoot of the former American Nazi Party, planned to march through the Chicago suburb, which had a large Jewish population, including Holocaust survivors.
The town of Skokie tried to stop the Nazi march, using an ordinance that made it a crime to disseminate material that might incite racial or religious violence or hatred. Skokie officials wanted to apply this law to the party’s display of swastikas, which would allow authorities to deny a permit for the march.
A Cook County Circuit Court enjoined members from conducting their demonstration in Skokie. After the Illinois Supreme Court denied the group a stay on the injunction, the case went to the U.S. Supreme Court. The Supreme Court in 1977 reversed the denial of the stay and remanded the case for further proceedings. The Illinois Supreme Court then held in Village of Skokie v. National Socialist Party of America that the display of swastikas did not constitute fighting words and thus the enjoining of that speech was an unconstitutional prior restraint. The Illinois decision would set the foundation for later hate speech cases.
In a parallel case challenging the constitutionality of Skokie’s ordinance, the 7th U.S. Circuit Court of Appeals in 1978 in Collin v. Smith, struck down the Skokie ordinance. The appeals court noted that although the swastika might be an offensive symbol, its display during a peaceful march could not be considered a crime.
The court wrote in its opinion that it is “the fact that our constitutional system protects minorities unpopular at a particular time or place from government harassment and intimidation, that distinguishes life in this country from life under the Third Reich.”
As a result of the courts’ decisions, Skokie officials could not stop the march, which the party ultimately held in Chicago.
Court: Cross-burning with intent to intimidate not protected by First Amendment
In 2003, the Supreme Court revisited its jurisprudence regarding white supremacist hate speech.
After a lengthy discussion of the history of the Ku Klux Klan and white supremacy, the Supreme Court held in Virginia v. Black that it is constitutional for a state to criminalize cross-burning when such burning is done with the intent to intimidate, but not when it is used to make a political statement or as part of a group assembly.
Brandenburg v. Ohio, Collin v. Smith and Virginia v. Black all illustrate that the First Amendment applies to all groups so long as their intent is not to intimidate or incite violence. But this is sometimes a fine line.
White supremacist march in Charlottesville raised First Amendment questions
Both civil and criminal court cases emerged from a white supremacist march in Charlottesville, Va., on Aug. 12, 2017, in which several people were injured and one woman was killed.
The “Unite the Right” rally was organized by white supremacists who were outraged by the planned removal of a statue of Confederate Gen. Robert E. Lee from a park in Charlottesville.
A Ku Klux Klan rally that preceded the march alarmed residents who organized counterprotests.
During the march, a white supremacist group of mainly 300 white men chanted phrases such as “Jews will not replace us.” Later, James Alex Fields Jr., 20, deliberately drove his car into a crowd that was counterprotesting, killing 32-year-old Heather Heyer, and injuring 35 others.
Fields, who had expressed Nazi and white supremacist views, had driven from Ohio to attend. He was convicted on eight counts, including first-degree murder, and sentenced to life in prison plus 419 years. He also pled guilty to 29 federal hate crime charges based upon crossing state lines to commit violence. Both state and federal officials called the attack an act of domestic terrorism.
Other cases arising from the Charlottesville rally involved the question of when a First Amendment right to assemble, speak and protest became criminal conduct, and how liability for the tragedy could be applied.
Court draws distinction between instigation and advocacy of riots
In August 2020, the 4th U.S. Circuit Court of Appeals held that parts of the federal Anti-Riot Act used to prosecute two men who participated in Charlottesville rally unconstitutionally infringed on advocacy speech protected by the First Amendment.
The two defendants, Benjamin Daley and Michael Miselis, were members of the white supremacist Rise Above Movement, an organization touting itself “as a combat-ready” group in nationalist white supremacist and identity circles.
The men reportedly participated in violent clashes with counterprotestors in Charlottsville. They were charged with traveling across state lines with the intent to riot in violation of federal law.
In U.S. v. Miselis, the 4th Circuit affirmed the convictions, but noted that the act did “sweep up a substantial amount of (protected) speech,” which would violate First Amendment rights. The U.S. Supreme Court rejected the defendants’ appeal from the Fourth Circuit decision.
Meanwhile, in a civil case filed by nine Charlottesville residents, Fields and other organizers, promoters and participants were sued for their roles in the rally.
In November 2021, jurors award $25 million in damages against the defendants, finding that they had engaged in a civil conspiracy under Virginia law, though a judge reduced the punitive damages to $350,000 early in 2023. A verdict of $2 million in compensatory damage was upheld. The jury deadlocked on whether the defendants had engaged in a federal race-based conspiracy.
The plaintiffs argued that the violence was no accident based on the writings and communications from the alt-right and supremacist groups they sued. One of the legal battles in the case involved the use of the “Discord” website and app for communication and commenting. Plaintiffs sought subpoenas to force Discord to reveal message content and the identities of anonymous platform users. The judge allowed the identities to be revealed but not the message content, and ordered the identities kept confidential. (Since then, Discord reportedly has significantly distanced itself from hate speech.)
Heyer’s death also spawned conspiracy and anti-government rhetoric in media articles and social media platforms. For example, some white supremacists said falsely that Heyer died of a weight-related heart attack while others falsely claimed Fields was threatened by someone hoisting a rifle. Even highly questionable opinions and conspiracy theories are generally protected by the First Amendment.
9th Circuit rules that parts of Anti-Riot Act violate First Amendment
In 2021, a ruling by the 9th U.S. Circuit Court of Appeals in California largely tracked the 4th Circuit ruling in the Charlottesville case.
In U.S. v. Rundo, four members of Rise Above Movement were accused of conspiracy to violate the federal Anti-Riot Act and three of those were charged with substantive violation of the act. The group had posted videos and pictures online of combat training as well as photos of assaults on people at political events.
A lower U.S. district court had ruled that the Anti-Riot Act was facially overbroad and therefore entirely unconstitutional in light of First Amendment rights.
But the 9th Circuit held that the act was constitutional except for a provision related to speech that promoted rioting. The court said that mere general advocacy is not the same as speech instigating an imminent riot or committing acts in furtherance of a riot.
The court found enough of the law constitutional to reinstate the charges, and the case was returned for further proceedings.
“We recognize that the freedoms to speak and assemble which are enshrined in the First Amendment are of the utmost importance in maintaining a truly free society,” the 9th Circuit ruling said. “Nevertheless, it would be cavalier to assert that the government and its citizens cannot act but must sit quietly and wait until they are actually physically injured or have had their property destroyed by those who are trying to perpetrate, or cause the perpetration of, those violent outrages against them.”
White supremacy speech online continues to be controversial
Concerns continue today about the use of the internet and social media by white supremacists to inflame and recruit others to their cause.
As early as 1999, former Ku Klux Klan grand wizard and political candidate David Duke summarized the potential of the Internet when he said it could be used to reach supporters directly, sparking “a chain reaction of racial enlightenment.”
By 2020, YouTube, Facebook and Twitter had banned Duke from their platforms for violating their hateful conduct or speech policies.
But in 2022, self-proclaimed free-speech absolutist Elon Musk purchased Twitter and allowed some banned users to return. Musk has said this is consistent with First Amendment rights; critics fear it will undermine democracy, lead to more bullying and spread influence by group such as white supremacists.
Twitter maintains it continues to block speech that promotes violence and refreshed its policy in March 2023.
This article was written in March 2023 by Dennis Hetzel, drawing partly upon information from a previous article written by Jason Abel. Hetzel is an author and former newspaper reporter, editor and publisher who also served as executive director of the Ohio News Media Association and president of the Ohio Coalition for Open Government.